State v. Ortiz

• Decision Date: 22 August 2001
• Docket Number: No. 00-3390-CR.,00-3390-CR.
• Citation: 247 Wis.2d 836,2001 WI App 215,634 N.W.2d 860
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Gabriel L. ORTIZ, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

247 Wis.2d 836

2001 WI App 215

634 N.W.2d 860

STATE of Wisconsin, Plaintiff-Respondent, v. Gabriel L. ORTIZ, Defendant-Appellant.

No. 00-3390-CR.

Court of Appeals of Wisconsin.

Submitted on briefs June 22, 2001.

Decided August 22, 2001.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Eileen A. Hirsch, assistant public defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Daniel J. O'Brien, assistant attorney general.

Before Nettesheim, P.J., Brown and Snyder, JJ.

¶ 1. NETTESHEIM, P.J.

Gabriel L. Ortiz appeals from the restitution provision of a judgment of conviction and from a postc onviction order upholding the restitution order. The judgment directs Ortiz to reimburse the city of Racine for overtime costs incurred by the city's police department, SWAT team, and negotiating team as the result of a police standoff with Ortiz. We reverse the restitution provision of the judgment and the postconviction order.

BACKGROUND

¶ 2. The underlying facts are not in dispute. On November 7, 1999, the Racine police were dispatched to Ortiz's residence in response to a family dispute call from Ortiz's sister. When the police arrived, Ortiz's sister reported that the matter had been resolved peacefully. The police left.

¶ 3. About one-half hour later, the police again responded to a call from Ortiz's sister who reported that Ortiz had attacked her. When the police arrived, Oritz's sister stated that Ortiz had struck her in the face and ripped the telephone out of the wall. She also stated that Ortiz was upstairs in the residence with his pit bull dog and a knife.

¶ 4. The police directed Ortiz's sister to go upstairs and tell Ortiz to come down and speak with them. She did so, but returned saying that Ortiz refused to speak or leave the residence. The police then entered the residence and confronted Ortiz, who had his pit bull dog at his side. The police asked Ortiz to put the dog in its kennel and to speak with them. Ortiz refused and threatened the police with his dog if they did not leave the residence.

¶ 5. The police withdrew from the residence and set up surveillance around the perimeter. Ortiz continued to refuse to exit the residence and shouted threats at the police from an upstairs window. Eventually, the police summoned a SWAT team and a negotiating team. In addition, the police brought Ortiz's mother to the scene. She spoke with Ortiz but failed to persuade him to leave the residence. The police also placed a portable phone in the doorway for Ortiz to use, but he threw it back at them. Some hours later, the police used tear gas to force Ortiz out of the residence and he was arrested.

¶ 6. The criminal complaint and later information charged Ortiz with four counts: failure to comply with an officer's attempt to take a person into custody by remaining in a building while armed with a dangerous weapon pursuant to WIS. STAT. § 946.415(2) (1999-2000);¹ obstructing an officer while armed pursuant to WIS. STAT. §§ 946.41(1) and 939.63(1)(a)1; disorderly conduct while armed pursuant to WIS. STAT. §§ 947.01 and 939.63(1)(a)1; and threatening to injure another while armed pursuant to WIS. STAT. §§ 943.30(1) and 939.63(1)(a)3. A jury convicted Ortiz of all of the charges.

¶ 7. At sentencing, the State sought restitution to the city in the amount of $9409.46, representing the overtime costs of the police department and the SWAT and negotiating teams. In response, Ortiz challenged the amount of the requested restitution and his ability to pay, but not the trial court's authority to make such a restitution order. The trial court sentenced Ortiz to three years in the state prison on the threat to injure while armed charge. As to the other counts, the court imposed and stayed sentences and placed Ortiz on probation. In addition, the court ordered Ortiz to pay restitution to the city in the amount requested by the State.

¶ 8. Post conviction and represented by new counsel, Ortiz challenged the legality of the restitution provision.² Ortiz argued that the order was invalid under State v. Schmaling, 198 Wis. 2d 756, 761, 543 N.W.2d 555 (Ct. App. 1995), where the court of appeals invalidated a restitution order because it sought to compensate a governmental entity which was a passive victim of the defendant's criminal conduct. The State responded that the order was valid under State v. Howard-Hastings, 218 Wis. 2d 152, 153-54, 579 N.W.2d 290 (Ct. App. 1998), where the court of appeals upheld a restitution order in favor of a governmental unit where the defendant had vandalized government property.

¶ 9. Although the trial court did not expressly invoke Howard-Hastings, the court ordered restitution. The court distinguished Schmaling, noting that here the police were the direct targets of Ortiz's criminal conduct and, as such, the police were the actual victims of Ortiz's offenses. Ortiz appeals.

DISCUSSION

Waiver

[1]

¶ 10. The State first argues that Ortiz has waived his restitution challenge because he did not contest the trial court's authority to make the restitution order at the sentencing. Instead, Ortiz first raised the issue via his postconviction motion.

[2]

¶ 11. Ortiz responds that the issue cannot be waived because it goes to the question of the trial court's authority to act in the first instance. However, we need not answer Ortiz's argument because, even assuming the issue could be waived, we nonetheless choose to address it. We do so for three reasons. First, waiver is a rule of judicial administration, not one of an appellate court's authority to address an issue. See Wirth v. Ehly, 93 Wis. 2d 433, 444, 287 N.W.2d 140 (1980). Thus, we sometimes choose to address a waived issue in the interests of judicial economy where the matter is of statewide importance or interest. Schmaling, 198 Wis. 2d at 762-63. This case differs factually from Schmaling and Howard-Hastings. As such, our decision will advance the law on this issue. ¶ 12. Second, assuming Ortiz did not timely object to the order in the trial court, neither did the State argue waiver when Ortiz first raised the issue in his postconviction motion. Instead, the State opposed the motion on substantive grounds.³ Therefore, unlike most waived issues, we have the benefit of the parties' trial court debate on the matter, and, most importantly, we have the benefit of the trial court's reasoning on the question. See State v. Madlock, 230 Wis. 2d 324, 329, 602 N.W.2d 104 (Ct. App. 1999).

[3]

¶ 13. Third, the issue is one of law involving statutory construction of the restitution statute. See Schmaling, 198 Wis. 2d at 760. Where the parties have fully briefed the legal issue and there are no factual issues, the appellate courts will sometimes overlook waiver. Wirth, 93 Wis. 2d at 444.

¶ 14. For these reasons, we reject the State's waiver argument and choose to address the issue on the merits.

Restitution

[4, 5]

¶ 15. As we have noted, the legality of the trial court's order presents a matter of statutory construction of the restitution statute, WIS. STAT. § 973.20. We review this question de novo without deference to the trial court. Schmaling, 198 Wis. 2d at 760. However, despite this standard of review, we value the court's reasoning on such a matter. See Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475, 507 N.W.2d 163 (Ct. App. 1993). This is so even where, as here, we disagree with the court's ruling. ¶ 16. Restitution in criminal cases is governed by WIS. STAT. § 973.20 which imposes a mandatory duty on the sentencing court to order restitution to the victim of a crime.⁴Schmaling, 198 Wis. 2d at 760. "The statute also requires the defendant to `[p]ay all special damages ... substantiated by evidence in the record, which could be recovered in a civil action against the defendant for his or her conduct in the commission of the crime.' Section 973.20(5)(a)." Schmaling, 198 Wis. 2d at 760.

¶ 17. In Schmaling, the defendant was convicted of crimes stemming from a motor vehicle accident resulting in the death of another. Id. at 758-59. The trial court ordered the defendant to make restitution to Racine county for firefighter and clean-up costs resulting from the accident. Id. at 758. We overturned that ruling. Id. Relying on State v. Evans, 181 Wis. 2d 978, 512 N.W.2d 259 (Ct. App. 1994), we held that even though public money was expended in dealing with the consequences of the defendant's criminal conduct, "none of [the crimes] were committed against [the county]." Schmaling, 198 Wis. 2d at 762. We thus concluded that neither the public, nor its alter ego, the county, was an "actual victim" of Schmaling's crimes within the meaning of WIS. STAT. § 973.20(1). Schmaling, 198 Wis. 2d at 761.

¶ 18. In Howard-Hastings, the defendant was convicted of criminal damage to property owned by the United States. Howard-Hastings, 218 Wis. 2d at 154. After violating a condition of probation requiring that she stay off of government property, the defendant's probation was revoked. Id. The ensuing sentence included a provision directing the defendant to pay restitution to the government for the property damages. Id.

¶ 19. The defendant challenged the restitution order on appeal. Id. at 153-54. The court of appeals identified the issue as "whether the term `victim' in § 973.20, STATS., includes governmental entities." Howard-Hastings, 218 Wis. 2d at 153-54. The defendant argued that Schmaling stood for the proposition that a governmental entity can never be a victim for purposes of the restitution statute. Howard-Hastings, 218 Wis. 2d at 157. The Howard-Hastings court disagreed, saying that Schmaling merely addressed whether a governmental entity "can be a `victim' even if it is not the direct victim." Howard-Hastings, 218 Wis. 2d at 158. Using the dictionary definition and related sections of the statutes that defined "victim," the Howard-Hast...